Last week, Harvard Law Professor Cass Sunstein posted a proposed list of the “all time great” Supreme Court Justices:

Who would make the cut?

To answer that question, we need a metric. It makes sense to consider two factors: historical significance and legal ability. It would be too contentious to include only those justices with whom one agrees, so let’s make this list ideology-free. We’ll also exclude the current justices, because it is too early to tell whether any will count among the all-time greats.

His nominees were John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, Robert Jackson, Earl Warren, William Brennan, and William Rehnquist.

Maybe the exercise shows that it is not possible to grade Justices on “legal ability” while simultaneously being “ideology-free.” But I will attempt to make a few suggestions within Sunstein’s parameters.

1. What are Brandeis and Frankfurter doing on this list? Both of them are famous and had plenty of accomplishments off the bench, but the case for their significance (or ability) as Justices is weak.

2. It’s weird that there is only a single Justice on this list from before the 20th Century. Indeed, you might expect a disproportionate number of “historically significant” figures to come from the historically distant past. At a minimum, I think Joseph Story and the first Justice Harlan have good claims to beat out Brandeis and Frankfurter (see above).

I would also give serious consideration to Roger Taney (Dred Scott may disqualify him on “legal ability” but surely it rates high on historical significance) and Stephen Field (who wrote more opinions than John Marshall).

3. I don’t see how Hugo Black, the precursor to modern textualism, can be excluded from the list. He fought harder than anyone for the incorporation of the Bill of Rights and a categorical approach to the First Amendment; and he also was a key part of much of the Warren Court criminal procedure revolution, all of which are important parts of the law today. Akhil Amar discusses Black’s influence more thoroughly in this 12-year-old article. That article contains the following passage, which is ironically prescient in light of Sunstein’s list:

But if all this is so, why is Black’s leadership not widely noted today? Part of the problem, as I have repeatedly hinted, is that one of America’s largest and most influential law schools, located across the river from Fenway Park, has tended to root for its own–Holmes, Brandeis, Frankfurter, and Brennan, most prominently. Far from being a Harvard man, Black was the leading antagonist of Harvard’s celebrated professor, Felix Frankfurter.

Black is ignored in favor of Holmes, Brandeis, Frankfurter and Brennan? Hmmm.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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